Universal Background Checks

Though more than 90% of the American public supports background checks for all gun sales, a dangerous and deadly loophole in federal gun laws still exempts unlicensed sellers from having to perform any background check whatsoever before selling a firearm. With this loophole, guns easily find their way into the hands of illegal buyers and gun traffickers, dramatically increasing the likelihood of gun murders and suicides.

Background

The most dangerous gap in federal firearm laws today is by far the background check loophole. Although federal law requires licensed firearm dealers to perform background checks on prospective purchasers, it does not require unlicensed sellers to do so. A 2017 study estimated that 22% of US gun owners acquired their most recent firearm without a background check—that translates to millions of Americans acquiring millions of guns, no questions asked, each year.1

According to the US Department of Justice, because federal law fails to require background checks by every person who sells or transfers a gun—a policy known as universal background checks—“individuals prohibited by law from possessing guns can easily obtain them from private sellers and do so without any federal records of the transactions.”2 In addition, because federal law does not require private sellers to inspect a buyer’s driver’s license or any other identification, there is no obligation for such sellers to confirm that a buyer is of legal age to purchase a firearm. “The private-party gun market,” one study observed, “has long been recognized as a leading source of guns used in crimes.”3

Although this loophole is sometimes referred to as the “gun show” loophole, because of the particular problems associated with unlicensed sellers at gun shows, it applies to all private firearm sales, regardless of where they occur. In fact, of growing concern are internet gun sales, which have substantially increased illegal buyers’ ability to find sellers willing to sell guns without a background check. For instance, one analysis found that purchasers from Armslist.com, a major online gun dealer, were nearly four times as likely to have a firearm-prohibiting criminal record than people attempting to buy guns from licensed dealers.4 (These issues are discussed more fully on our pages on Gun Shows and Online Gun Sales.)

When unlicensed sellers don’t run background checks, people looking to commit violence can easily obtain guns, often with deadly consequences. For example, in 2014, a gunman killed four people, including his ex-girlfriend, in a shooting spree in Morgantown, West Virginia. Although the shooter was prohibited from purchasing firearms due to multiple felony convictions, including kidnapping, he was able to buy a gun from a seller on Facebook, who was not required to run a background check under West Virginia law.5 Other recent shootings have shown the deadly consequences of loopholes in the existing system. The shooter who killed 26 people at First Baptist Church in Sutherland Springs, Texas, was able to buy four guns because the record of his disqualifying domestic violence conviction was not input into NICS, the federal background check system. The gunman who murdered nine people at Emanuel AME Church in Charleston was able to obtain a handgun, even though he should have been prohibited because of a previous arrest, because federal law allows sales to proceed by default if a background check isn’t completed within three days. (These issues are discussed more fully on our page on Background Check Procedures.)

Law enforcement groups across the country have called for expanded background check laws, noting that because individuals who fail a background check can easily get firearms from unlicensed sellers, guns sold without a background check often end up being used in crimes and violence.6 In fact, the International Association of Chiefs of Police recommends that “Congress, as well as state, local, and tribal governments, should enact laws requiring that all gun sales and transfers proceed through” a federally licensed dealer.7

Gun offenders overwhelmingly obtain their guns through private sales. About 80% of all firearms acquired for criminal purposes are obtained through private-party transfers.8 In fact, a survey of prisoners convicted of gun offenses revealed that 96% of inmates who were prohibited from possessing a firearm at the time they committed their crime had obtained their firearm from an unlicensed private seller.9 Other studies identify unlicensed private sellers as major contributors to illegal firearm trafficking within the United States and across the US-Mexico border.10

When background checks are required and enforced, they help keep guns out of dangerous hands. Since the federal background check requirement was adopted in 1994, over 3 million people legally prohibited from possessing a gun—mainly convicted felons, domestic abusers, and the severely mentally ill—have been denied a firearm transfer or permit.11 In 2017 alone, about 181,000 attempted gun purchases were denied because the individual was prohibited from possessing a firearm.12

Background checks are easy, convenient, and impose almost no burden on law-abiding gun purchasers. In at least 90% of cases, firearm background checks processed through the National Instant Criminal Background Check System (NICS) are determined immediately—in most instances within 90 seconds.13 Furthermore, background checks are almost always accurate and rarely provide false-positive results. The FBI’s quality control evaluations suggest that background checks are accurate approximately 99.3% to 99.8% of the time; similar findings were found in a survey conducted by the Office of the Inspector General.14

More than a decade of polling data shows that the vast majority of the American public supports laws requiring background checks on all firearm purchases.15 In fact, a February 2018 Quinnipiac University Poll found that 97% of Americans—including 99% of Democrats, 97% of Republicans, and 97% of gun owners—support requiring background checks on all gun sales.16 Strong support for background check laws has also been measured among NRA members, with at least 74% supporting comprehensive background checks.17

Summary of Federal Law

Federal law imposes various duties on federally licensed firearms dealers. Firearms dealers must, among other things:

Perform background checks on prospective firearm purchasers.

Maintain records of all gun sales.

Make those records available to law enforcement for inspection.

Report certain multiple sales.

Report the theft or loss of a firearm from the licensee’s inventory.18Federal law imposes none of these requirements on unlicensed sellers, however.

The Gun Control Act of 1968 provides that persons “engaged in the business” of dealing in firearms must be licensed.19 Although Congress did not originally define the term “engaged in the business,” it did so in 1986 as part of the McClure-Volkmer Act (also known as the Firearms Owners’ Protection Act). That act defined the term “engaged in the business,” as applied to a firearms dealer, as “a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”20

Significantly, however, the term was defined to exclude a person who “makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”21 According to a 1999 report issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives, the current definition of “engaged in the business” often frustrates the prosecution of “unlicensed dealers masquerading as collectors or hobbyists but who are really trafficking firearms to felons or other prohibited persons.”22

Summary of State Law

Twenty states and Washington DC have extended the background check requirement beyond federal law to at least some private sales.

Eleven states (California, Colorado, Connecticut, Delaware, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington) and the District of Columbia require universal background checks at the point of sale for all sales and transfers of all classes of firearms, whether they are purchased from a licensed dealer or an unlicensed seller.23 (Note, however, that Nevada’s background check law, enacted through a voter ballot initiative in 2016, has not yet been implemented).24

Two more states, Maryland and Pennsylvania, require point of sale background checks for handguns but not for long guns, like rifles and shotguns.

Instead of a point of sale background check, three states (Hawaii, Illinois, and Massachusetts) require all firearm purchasers to obtain a permit, issued after a background check, in order to buy any firearm. New Jersey requires firearm purchasers to both obtain a permit to purchase a firearm and, if the purchase is from an unlicensed seller, conduct the transaction through a federally-licensed firearms dealer.25 Four more states (Iowa, Michigan, Nebraska, and North Carolina) have this permit and background check requirement for the purchase of handguns, but not long guns. Illinois also requires a point of sale background check whenever a firearm is sold at a gun show.

State Laws Closing the Private Sale Loophole

Background Checks at the Point of Transfer

The most comprehensive approach to ensuring that guns are not sold to prohibited people is through a requirement for a background check at the point of transfer of any firearm. Processing transfers by private sellers through licensed dealers or a law enforcement agency helps to ensure that a background check will be conducted prior to any transfer.

California, Colorado, Delaware, Nevada, New Jersey, New York, Oregon, Vermont, and Washington generally require all firearm transfers to be conducted by or processed through licensed dealers, who conduct background checks on prospective firearm purchasers or recipients. In the District of Columbia, firearms may be sold and transferred only by or to a licensed dealer.

Rhode Island requires all sellers to obtain a completed application form from the prospective purchaser and to submit the form to law enforcement for purposes of conducting a background check. Connecticut requires any person transferring a firearm to either submit a form to law enforcement or conduct the transfer through a licensed dealer, so that a background check is conducted for every sale or transfer.

Maryland and Pennsylvania require a background check for every prospective handgun sale or transfer, and provide that the background check may be conducted either by a licensed dealer or a designated law enforcement agency.

State Permit Requirements for Private Purchasers

Eight states implement firearm background check requirements on private sales primarily by prohibiting private sellers from transferring firearms to purchasers who do not have a requisite state license or permit, and by requiring a background check before issuing the license or permit.

States that Require Permits for Private Purchasers after Background Checks40

Hawaii, Illinois, Massachusetts, and New Jersey require a person to obtain a license or permit before purchasing any firearm from any seller, and require applicants to pass a background check in order to obtain that license or permit. Iowa, Michigan, Nebraska, and North Carolina require a person to pass a background check in order to obtain a license or permit for the purchase of a handgun but not long guns like rifles or shotguns. State licensing requirements are discussed in detail in our policy page on Licensing. While these requirements ensure that a background check has been conducted at some point, a person may fall within a prohibited category after the license or permit is issued but before the time the person attempts to purchase a firearm. As a result, licensing laws do not necessarily prevent prohibited people from accessing firearms as effectively as point-of-transfer background checks.

Gun Show Background Checks

Illinois49 requires a background check before the sale or transfer of a firearm at a gun show. Additionally, though Oregon generally requires background checks to be conducted by a licensed dealer at the point of transfer for all firearms, Oregon law also allows a transferor at a gun show who is not a licensed dealer to contact the Department of State Police directly to conduct the background check.50 For more information about the regulation of gun shows, see our summary on Gun Shows.

In 2016, Virginia enacted a law requiring the state police to be available at gun shows in order to facilitate voluntary background checks requested by either party to a transaction if the seller is unlicensed.51

Key Legislative Elements

The features listed below are intended to provide a framework from which policy options may be considered. Any jurisdiction considering new legislation should consult with counsel.

For all firearm transfers, private sellers are subject to similar requirements as licensed dealers, including background checks and record-keeping requirements.

The most comprehensive policy option requires all firearm transfers to be conducted through licensed dealers, so that background checks will be completed on all purchasers (including purchases from unlicensed sellers), and sales records will be maintained (see California, Colorado, Delaware, District of Columbia, New York, Oregon, Vermont, and Washington).

If the jurisdiction does not require that all firearm transfers be conducted through licensed dealers, private sellers should be required to:

Conduct background checks through a central law enforcement agency that has access to federal and state databases of prohibited purchasers (Rhode Island requires private sellers to conduct background checks directly through law enforcement; Connecticut requires private sellers to conduct background checks through licensed dealers or law enforcement).

Maintain records of all firearm transfers for a lengthy period (Illinois requires all sellers to retain sales records for 10 years).

Report all transfers to state and local law enforcement (see Connecticut, Hawaii, Massachusetts).

“Few Individuals Denied Firearms Purchases Are Prosecuted and ATF Should Assess Use of Warning Notices in Lieu of Prosecutions,” US Government Accountability Office, September 5, 2018, https://www.gao.gov/assets/700/694290.pdf. ⤴︎

Office of the Inspector General, “Audit of the Handling of Firearms Purchase Denials Through the National Instant Criminal Background Check System,” US Department of Justice, September 2016, https://oig.justice.gov/reports/2016/a1632.pdf. ⤴︎

These states adopted their universal background check laws in this order: Washington D.C. (conducts universal background checks as part of a firearm registration law that was enacted in 1975), Rhode Island (1990), California (1991), New York (2013), Colorado (2013), Connecticut (2013), Delaware (2013), Washington (2014 by voter initiative), Oregon (2015), Nevada (2016), and Vermont (2018). ⤴︎

Due to an ongoing dispute between the FBI and Nevada’s Attorney General about which law enforcement agency is responsible for processing background checks in that state, Nevada currently does not prosecute individuals for failing to conduct background checks on private sales of firearms. See Office of the Attorney General of the State of Nevada, Opinion No. 2016-12 on Nevada Revised Statute 228.150, Dec. 28, 2016, https://www.scribd.com/document/335236577/Read-Nevada-AG-s-opinion-FBI-letter. ⤴︎

N.Y. Gen. Bus. Law § 898. 2013 NY ALS 1. See also N.Y. Gen. Bus. Law §§ 895-897; N.Y. Penal Law § 400.00 (pre-existing law requiring a background check before sale of a firearm at a gun show). ⤴︎

Or. Rev. Stat. § 166.435. At gun shows, Oregon law allows a transferor who is not a licensed dealer to contact the Department of State Police directly to conduct the background check. Or. Rev. Stat. § 166.436. ⤴︎

430 Ill. Comp. Stat. 65/1 – 65/15a, 720 Ill. Comp. Stat. 5/24-3(k). Since 2014, Illinois has required a seller to contact law enforcement and verify the validity of the purchaser’s permit (called a FOID Card) at the time of the sale. ⤴︎